the rate of fare should not exceed five cents on any car or on any route named in the ordinance. In 1873 a section added to this ordinance authorized the construction of a second track along Jefferson avenue. In 1879, by ordinance, the rights and obligations under the ordinance of 1862 and amendments thereof were "extended and limited to 30 years from this date." In 1889 a supplemental ordinance granted to the Detroit City Railway the right, among other things, to extend a double track along Jefferson avenue from its then easterly terminus to the easterly city limits, fixing the time within which the same should be constructed; it being also provided that the additional lines should be operated as a part of the existing system of the Detroit City Railways, provided the company should agree in writing to carry passengers over certain lines to other points on specified lines for a single five-cent fare, and also to make arrangements for carrying passengers within specified hours over any of its lines within the city limits for a single fare, or on an eight for a quarter ticket with specified transfer rights.

In 1862 the city limits of Detroit on Jefferson avenue were at Mt. Elliott avenue. In 1885 they were extended to a point 200 feet east of Baldwin avenue, and so continued until said ordinance of 1889 was enacted. In 1891 the limits were extended to Hurlbut avenue, which was the easterly line of the township of Hamtramck. Previous to this time a route had been constructed on Jefferson avenue in Hamtramck township by the Hamtramck Street Railway Company, or by the Jefferson Avenue Railway, under grants providing that the city fare should include transportation in the township and vice versa. From Hurlbut avenue easterly to the Country Club in the township of Grosse Pointe, a line was constructed under a grant made by the township, or village, of Grosse Pointe to the village of Fairview. This line was purchased by respondent prior to an act passed in 1907, by which the territory from Hurlbut avenue east to a point near the Alter Road in the village of Fairview became a part of

the city. These village and township grants contained provisions for an extra fare.

Prior to 1909 respondent had absorbed the various lines organized and constructed under the foregoing franchises and ordinances, by purchase, in accordance with the provisions of section 6448, 2 Comp. Laws,' and acquired the rights conferred by such grants, including authority to collect fares "in the same manner and upon the same terms" as the original organizations.

A question having arisen between the city and respondent as to the latter's franchise rights being about to expire on certain streets, including a portion of Jefferson avenue, the matter was temporarily adjusted by an arrangement under which the common council of the city passed a resolution on October 26, 1909, granting respondent permission to continue operations after November 14, 1909, from day to day, "under the same terms and conditions, except as to percentages on gross receipts now prevailing in the city of Detroit whether due to contract agreement or not." The conditions of this resolution were accepted by the respondent with the statement that it did not waive, and conceded that the city of Detroit did not waive, any rights. At the time of this arrangement respondent was collecting the fares in controversy in this cause.

The question presented for determination is whether or not, outside of workingmen's ticket hours, the rights to charge extra fares acquired by respondent under the Greenfield and Grosse Pointe grants are abrogated within existing city limits by the foregoing arrangement of 1909, construed with the original city ordinances of 1862 and 1868, fixing the rate of fare within the city limits, and the two city ordinances of 1889 relative to the Grand River Street Railway Company and the Detroit City Railway Company. Apparently the parties hereto do not disagree as to their respective rights relative to rates of fare inside of or beyond the city limits, had those limits remained unThis section as amended in 1905 is found in 3 How. Stat. (2d Ed.) § 6997.

changed. The real contention arises over the effect of extending the city boundaries.

The subsequent agreement of 1909 was manifestly a temporary provision for a modus operandi from day to day, not intended as a final adjustment of any of their serious differences, and gives little aid in the solution of this problem. By it relator permitted respondent, on payment of a certain per diem, to continue operations "under the same terms and conditions, except as to percentages on gross receipts, now prevailing, in the city of Detroit, whether due to contract agreement or not," and the proposition was accepted with the understanding, as declared by respondent, that neither party waived any of its rights, whatever they might be.

Relator contends that one of its rights, reserved and imposed by the terms and conditions of the various ordinances, franchises, and legislation heretofore referred to, gave to any passenger, upon payment of a five-cent fare, the privilege of a continuous ride, within the city limits, from any point on the lines of respondent's railway to any other point on any of said lines; that the combined provisions relating to continuous rides, in the various grants which respondent had united, comprehended all territory within the limits of the city of Detroit, whenever and wherever located, and went with any extension of the municipal boundaries, or of respondent's lines, within said boundaries.

Respondent contends that a proper construction of said grants restricts the five-cent fare rate to the city limits, and lines constructed, as they existed when the grants were made; and urges that its position is strengthened by the arrangement of 1909, for the reason that relator knew the railway company was then regularly collecting the fares now objected to and sanctioned the same as a part of the "prevailing terms and conditions" recognized and reserved by the agreement.

We are unable to adopt that view of the significance of

178 MICH.-21.

the agreement. The word "prevailing" has no technical legal import. In the connection used it simply signifies that which is common, in operation or prevalent, while "terms" and "conditions" often used synonymously, when relating to legal rights, are technical words of well-defined legal meaning. As used in contracts generally, they mean the propositions, limitations, and exactions which comprise in whole or in part the agreement and govern the contracting parties, defining what they obligate themselves to do or not to do. As applied to a statute or ordinance giving a charter or franchise, they signify the boundary, limit, or extent of the grant. way Co. v. City of Cincinnati, 1 Ohio Prob. R. 269-278. The act, or fact that respondent was collecting the disputed fares, when a status quo from day to day was agreed upon, could not be construed as a part of the "prevailing terms and conditions" mentioned in the agree

ment.

Rail

Counsel for relator broadly contend that the effect of any change in a municipal boundary is no longer an open question in this State, but that it was put to rest by the decision of this court in People v. Railway, 162 Mich. 460 (125 N. W. 700, 127 N. W. 748, 139 Am. St. Rep. 582).

Strong language of general application is there found. The direct question in that case was whether the requirements of paragraph "d," section 4, of the ordinance of 1889, which ordinance is also here involved, compelling the respondent to carry passengers during workingmen's ticket hours "over any of its lines in said city for a single fare," bound it to transport passengers to the easterly limits of Jefferson avenue, as extended subsequent to the adoption of said ordinance, notwithstanding the company was assignee of the earlier franchises granted by Grosse Pointe township and the village of Fairview. In the original opinion handed down in that case this court, speaking through Justice MONTGOMERY, said:

"We think it not unreasonable to hold that this mutual contract was made in view of the power of the legislature of the State to increase or diminish the territory within the city, and that neither the city nor the company contemplated that in case of an extension of the lines of the company within the city, either by purchase or acquisition from another company, an increased fare should be demanded"-citing and reviewing Township of West Bloomfield v. Railway, 146 Mich. 198 (109 N. W. 258, 117 Am. St. Rep. 628), and Indiana R. Co. v. Hoffman, 161 Ind. 593 (69 N. E. 399).

The opinion concluded as follows:

"We construe the ordinance to include any street railway constructed or purchased by the defendant which shall be within the city of Detroit as the limits of said city may from time to time be fixed by the legislature."

On a rehearing granted in the case the court declined to modify or recede from those views, and, in a supplemental opinion by Justice STONE, said:

"A further investigation of the questions involved satisfies us of the correctness of the reasoning and conclusion of Chief Justice MONTGOMERY who wrote the former opinion in these cases (ante, 461 [162 Mich. 461, 125 N. W. 700, 127 N. W. 748, 139 Am. St. Rep. 582]), to which opinion reference is here made. He cited and followed the case of Indiana R. Co. v. Hoffman, 161 Ind. 593 [69 N. E. 399], decided by the Supreme Court of Indiana. That case is well reasoned, and is supported by the authorities therein cited, and we think it should be followed in these cases. It may be asserted as a general proposition, applicable here, that a municipal law or ordinance designed for a city at large operates throughout its actual boundaries, whatever they are, and is not affected by the fact that these are enlarged from time to time"

concluding with approval of the rule that the terms of a franchise, or grant, by a municipality, shall be construed strictly as against the grantee and as favorably to the grantor as its terms permit.

It is claimed in behalf of respondent that this case is not controlling; that the language then under consideration, relative to the fares, was different from that now before